Written by Don Byrd
As President Barack Obama concludes his tenure in office, a review of his administration’s 8-year record reveals an overall steady – though imperfect –support of religious liberty and the separation of church and state. Here are some of the highlights of three key areas of that legacy.
Supreme Court Appointments
President Obama named two justices to the U.S. Supreme Court, Sonia Sotomayor and Elena Kagan. Both have been consistent supporters of religious liberty, joining majorities to support religious freedom rights of employees (EEOC v. Abercrombie) and of prison inmates (Holt v. Hobbs). Where the majority failed to uphold a strong Establishment Clause, Justices Sotomayor and Kagan dissented. Particularly noteworthy, Justice Kagan authored an impassioned dissent in favor of plaintiffs who claimed the openly Christian invocations during a local government board meeting violated the separation of church and state (Town of Greece v. Galloway). Such government practices, Kagan wrote, must “treat every citizen, of whatever religion, as an equal participant in her government.” Her dissent also cited the BJC’s brief in the case.
Faith-Based Office and Policies
Early in his presidency, President Obama announced that he would retain President George W. Bush’s controversial White House Office of Faith-Based and Community Initiatives, renaming it the Office of Faith-Based and Neighborhood Partnerships. In addition to focusing on the role of faith-based and community organizations in providing social services, President Obama appointed numerous religious and community leaders from diverse faiths and political leanings to an advisory council. An early task force (which included then-BJC Executive Director Brent Walker) was dedicated to shoring up the constitutional and legal basis for the office and eventually led to guidance for the president’s important reforms regarding government funding and partnerships with faith-based organizations.
The financial relationship between the federal government and faith-based social service providers generated significant controversy during the tenure of Obama’s predecessor, George W. Bush. Specifically, religious liberty advocates – including the Baptist Joint Committee – criticized changes in regulations that threatened to use taxpayer dollars to fund religious social service programs without sufficient safeguards to ensure that the money would not be used to advance religion. A longstanding principle of the BJC is that religious liberty is undermined when government funds religion or otherwise directly supports efforts to proselytize, or when government funds are used to discriminate on the basis of religion in hiring. Those eligible for government-funded services should not have to choose between receiving needed services and participating in religious activity.
Another critique centered on nondiscrimination in hiring within organizations that received federal funding. As a presidential candidate, Barack Obama recognized the problem. Campaigning in Ohio in 2008, he said, “[I]f you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them – or against the people you hire – on the basis of their religion.” Many hoped that once in office he would move quickly to remove Bush-era policies that ignored or exacerbated church-state concerns regarding faith-based partnerships.
After a period of prolonged deliberation, the administration issued regulations that strengthened the constitutional safeguards governing the relationship between the federal government and faith-based social service providers. New rules require religious organizations to separate religious activities from government-funded services. They also protect the religious liberty rights of the beneficiaries of taxpayer-funded services by requiring written notice of beneficiary rights. Unfortunately, the Obama administration, however, failed to reverse a troubling Bush policy that allows religious organizations to discriminate based on religion in hiring using taxpayer dollars.
Efforts to Combat Religious Discrimination
The Obama administration was active across several fronts in addressing the rise in religious discrimination, and the rise in anti-Muslim rhetoric specifically. As the President said in remarks at the Islamic Society of Baltimore in February 2016 (his first visit to a U.S. mosque), “[I]f we’re serious about freedom of religion – and I’m speaking now to my fellow Christians who remain the majority in this country – we have to understand an attack on one faith is an attack on all our faiths.”
New Justice Department guidelines were issued banning federal law enforcement from engaging in religious profiling. A coalition of advocates including the BJC had previously called for an end to the practice, calling it divisive and warning that profiling “undermines Americans’ trust in . . . our nation’s commitment to religious liberty and equal protection under the law.”
The DOJ ramped up its enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits local government from using zoning decisions to deny religious exercise unnecessarily. The law has been key to holding accountable local governments that refuse to allow mosque construction. The last 8 years has seen a rapid increase in the number of mosque construction disputes, and the federal government has used RLUIPA effectively to protect religious freedom rights in those communities.
Meanwhile, the EEOC has taken strong action in response to the increase in claims of religious discrimination in the workplace, particularly claims involving discrimination against Muslim employees and job applicants. The agency has been clear and consistent that employees should not have to choose between their faith and their livelihood when such a choice is avoidable.
Most recently, the administration announced a coordinated effort across multiple agencies to combat religious discrimination. After hosting roundtable events across the country to identify problems and prepare reports, new initiatives from the Departments of Education and Justice, as well as the EEOC, seek to address religion-based hate crimes, discrimination in the workplace, and incidents of religion-based bullying in education.
Taken as a whole, the Obama administration demonstrated a high level of engagement on issues related to religious liberty. We are all waiting to see if the Trump administration will build upon the Obama administration’s work or chart a new course in this area.